Gonyea v. United States of America

Filing 2

Order Denying 1 Petition for Writ of Audita Querela. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY GONYEA,
Petitioner,

Case No. 15-10268
HON. AVERN COHN

v.
UNITED STATES OF AMERICA,
Respondent.
______________________________________/
ORDER DENYING PETITION FOR WRIT OF AUDITA QUERELA (Doc. 1)
I. Introduction
This is a case under 28 U.S.C. § 1651. Petitioner Jerry Gonyea (Petitioner) is
serving a sentence of 351 months following his conviction on bank robbery and firearms
charges. Before the Court is Petitioner’s petition for a writ of audita querela, essentially
arguing that that he is entitled to relief based on the Supreme Court's decisions in
Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376, 1384
(2012).1 For the reasons which follow, the petition will be denied.
II. Background
In 1994, Petitioner and an accomplice robbed two banks during which defendant
brandished firearms and terrorized those present, including children, with threats of
death. Petitioner was also on state parole at the time of the offenses. Petitioner
initially plead guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113 and
two counts of using or carrying a firearm during the commission of a felony, in violation
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In these cases, the Supreme Court held that a criminal defendant is entitled to
the effective assistance of counsel during the plea bargaining stage, and that counsel
must convey any plea offers made by the prosecution to the defendant.

of 18 U.S.C. § 924(c). Following protracted pre-trial proceedings, during which
Petitioner withdrew his plea and attempted, unsuccessfully, to pursue a diminished
capacity defense, Petitioner again plead guilty in 1996 to the same four counts. The
Rule 11 agreement called for a sentence at the bottom end of the guidelines, 351
months. Petitioner also reserved the right to appeal the preclusion of his diminished
capacity defense. As noted above, the Court sentenced Petitioner to 351 months.
Petitioner appealed, arguing that he should have been allowed to present a diminished
capacity defense. The Court of Appeals for the Sixth Circuit affirmed Petitioner’s
conviction. United States v. Gonyea, 140 F.3d 649 (6th Cir. 1998).
Over twelve years later, on August 25, 2010, Petitioner filed a motion for relief
from judgment under Fed. R. Civ. P. 60(b) in which he challenged his sentence under
§ 924(c). The Court denied the motion on October 28, 2010. See Doc. 106 in Case No.
94-80346. Thereafter, almost two years later, on August 16, 2012, Petitioner filed a
motion under § 2255, challenging the computation of his sentence and raising
complaints regarding the conditions of his confinement. The Court denied the motion.
See Doc. 116 in Case No. 94-80346.
Now before the Court is the present petition for a writ of audita querela.
Petitioner argues that: (1) the holdings of Frye and Cooper should apply to his case, (2)
trial counsel was ineffective for misadvising Petitioner regarding the prospects of raising
certain defenses at trial, (3) his sentence is too long, and (4) he has failed to receive
sentencing credit for time served in the state system.

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III. Analysis
A.
The writ of audita querela is a common-law writ that affords relief only in very
limited circumstances in criminal cases. It is "used to attack a judgment that was
correct when rendered, but that later became incorrect because of circumstances that
arose after the judgment was issued." Carrington v. United States, 503 F.3d 888, 890
n. 2 (9th Cir. 2007); see also United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995)
(writ of audita querela "is probably available where there is a legal, as contrasted with
an equitable, objection to a conviction that has arisen subsequent to the conviction and
that is not redressable pursuant to another post-conviction remedy.") (emphasis added).
Where the petitioner's legal objection to his conviction centers on an issue of statutory
interpretation, audita querela is only a possible remedy where the petitioner is "factually
or legally innocent as a result of a previously unavailable statutory interpretation." In re
Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997).
B.
Petitioner clearly has legal, rather than factual, objections to his conviction. The
petition rests on a substantive legal argument about whether new Supreme Court cases
entitle him to relief and whether other legal errors occurred during his criminal
proceeding. This is a clear indication that Petitioner is actually seeking a writ of habeas
corpus, rather than a writ of audita querela. As such, relief is not available. See United
States v. Herrera, 216 F. App'x 809, 811 (10th Cir. 2007) (when a petition asserts
substantive claims to set aside a conviction, the petition is treated as one for habeas
corpus, rather than audita querela); Shelton v. United States, 201 Fed. Appx. 123, 124
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(3d Cir. 2006) ("For claims that are cognizable in a § 2255 motion, the writ of audita
querela is not available. In particular, the writ cannot be invoked in order to enable a
defendant to file a § 2255 claim, but avoid complying with the rules that govern such
motions.") (citations omitted). That is, because Petitioner already filed a post-conviction
motion under § 2255, absent permission from the Sixth Circuit, he cannot file a second
motion. See § 2255(h).
Finally, based on Sixth Circuit precedent, it appears that there is also a further
limitation on the availability of audita querela relief that would preclude Petitioner from
obtaining the writ. In Frost v. Snyder, 13 F. App'x 243, 245 n. 1 (6th Cir. 2001), the
Sixth Circuit said that a writ of audita querela "requires satisfaction of the judgment,
[and] it can only be used when the petitioner has served his or her sentence and been
released from custody." Id. (quoting Ira P. Robbins, The Revitalization of the
Common-Law Civil Writ of Audita Querela As a Postconviction Remedy in Criminal
Cases: The Immigration Context and Beyond, 6 GEO. IMMIGR. L.J. 643 (1992)).
Petitioner has not finished serving the sentence imposed by the Court in 1998. Thus,
he cannot obtain a writ of audita querela, even were there no other roadblocks to his
obtaining the writ.
IV. Conclusion
For the foregoing reasons, petition is DENIED. This case is DISMISSED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: January 27, 2015
Detroit, MI
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15-10268, Gonyea vs. United States

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, January 27, 2015, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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